JOHN R. TOZZI, Appellant (Plaintiff),
v.
J. DENNY MOFFETT and JEFF WILKINSON, Appellees (Defendants). JOHN R. TOZZI, Appellant (Plaintiff),
v.
RICHARD J. MULLIGAN, Appellee (Defendant).
Appeal
from the District Court of Teton County The Honorable Norman
E. Young, Judge
Representing Appellant: C.M. Aron, Aron & Hennig, LLP,
Laramie, Wyoming.
Representing Appellee J. Denny Moffett: Scott E. Ortiz and
Scott P. Klosterman of Williams, Porter, Day & Neville,
P.C., Casper, Wyoming. Argument by Mr. Klosterman.
Representing Appellee Jeff Wilkinson: Kim D. Cannon, Davis
& Cannon, LLP, Sheridan, Wyoming; Leah C. Schwartz, Davis
& Cannon, LLP, Cheyenne, Wyoming. Argument by Mr. Cannon.
Representing Appellee Richard J. Mulligan: John A. Sundahl
and Patrick M. Brady of Sundahl, Powers, Kapp & Martin,
LLC, Cheyenne, Wyoming. Argument by Mr. Sundahl.
Before
DAVIS, C.J., and BURKE [*] , FOX, KAUTZ, and BOOMGAARDEN, JJ.
KAUTZ,
JUSTICE.
[¶1]
This is a consolidated appeal involving professional
malpractice, breach of fiduciary duty, and conversion claims
arising out of conservatorship and divorce proceedings. In
2011, Georgene Tozzi filed for divorce from the appellant,
John R. Tozzi. Concerned about Mr. Tozzi's mental state
and potential waste of the marital estate, Mrs. Tozzi
petitioned the district court for the appointment of a
temporary conservator for Mr. Tozzi. The district court
granted the petition and appointed Jeff Wilkinson as Mr.
Tozzi's conservator and J. Denny Moffett as counsel for
the conservator. Mr. Wilkinson and Mr. Moffett retained
Richard J. Mulligan to represent Mr. Tozzi in the divorce. In
October 2013, after the divorce concluded, the district court
determined the conservatorship was no longer necessary and
terminated it. In 2015, Mr. Tozzi filed a lawsuit against Mr.
Wilkinson, Mr. Moffett and Mr. Mulligan (collectively
referred to as "the Appellees") alleging
conversion, professional malpractice, and breach of fiduciary
duty. The district court granted summary judgment in favor of
the Appellees, and Mr. Tozzi appeals those orders.
ISSUES
[¶2]
Mr. Tozzi states the following claims in his appeal against
Mr. Moffett and Mr. Wilkinson:
ISSUE 1: Did disputes of material fact preclude entry of
summary judgment?
ISSUE 2: Was it error for the [d]istrict [c]ourt to strike
the affidavit of [Mr. Tozzi's] expert for offering
opinions based on hypothetical facts, and to grant summary
judgment in reliance entirely on the non-factual affidavits
of [the defendant's] experts?
ISSUE 3: Did the [d]istrict [c]ourt misapply the doctrines of
res judicata and collateral estoppel to a legal malpractice
claim alleging misconduct in obtaining the prior judgment?
ISSUE 4: Was it [e]rror for the [d]istrict [c]ourt to
[d]isregard the [c]ommon [s]ense [e]xception in [a]pplying
the [s]tandard [a]pplicable to [l]egal [m]alpractice?
ISSUE 5: In a [c]onservatorship, do Wyoming Statutes require
submission of detailed billings to the [c]ourt for approval
of attorneys' fees and [c]onservator fees?
[¶3]
Mr. Tozzi raises the following issues in his appeal against
Mr. Mulligan:
ISSUE 1: Did disputes of material fact preclude entry of
summary judgment?
ISSUE 2: Was it error for the [d]istrict [c]ourt to strike
the affidavit of [Mr. Tozzi's] expert for offering
opinions based on hypothetical facts, and to grant summary
judgment in reliance entirely on the non-factual affidavits
of [the defendants'] experts?
ISSUE 3: Is an attorney hired by a [c]onservator a third
party claimant, such that his claim for attorneys' [fees]
must be submitted in accordance with statute?
FACTS
[¶4]
In 2011, Mrs. Tozzi filed for divorce. Mr. Tozzi did not
respond to the divorce complaint and the clerk of court
entered a default against him. Mrs. Tozzi then requested the
district court appoint a temporary conservator for Mr. Tozzi
to prevent waste of the marital property due to Mr.
Tozzi's mental state. Mr. Tozzi struggled with depression
throughout his life, and his condition worsened after Mrs.
Tozzi filed for divorce. She was concerned with his inability
to receive and evaluate information, make or communicate
decisions, or manage the property. In the days leading up to
Mrs. Tozzi's request for the conservator, Mr. Tozzi's
daughter visited her father and found him living in filth and
squalor and not taking care of himself. The daughter tried to
convince Mr. Tozzi to seek medical treatment, and after he
refused, she called for emergency assistance and he was taken
to the hospital via ambulance. The district court appointed
Mr. Tozzi's longtime accountant, Jeff Wilkinson, as
temporary conservator, and J. Denny Moffett as legal counsel
for Mr. Wilkinson as conservator. Mr. Wilkinson and Mr.
Moffett retained Richard J. Mulligan to serve as Mr.
Tozzi's counsel in the divorce proceedings.
[¶5]
The district court converted the temporary conservatorship to
a permanent conservatorship, and the divorce proceedings
continued to trial after Mr. Mulligan convinced the court to
set aside the default judgment entered against Mr. Tozzi.
After a trial, the district court entered a divorce decree
dividing the marital property. Mr. Tozzi received
approximately $75, 000, 000 in assets and Mrs. Tozzi received
approximately $74, 500, 000 in assets.
[¶6]
On May 20, 2013, seven months after the divorce decree was
entered, Mr. Wilkinson and Mr. Moffett filed a petition
requesting that the district court terminate the
conservatorship. The district court heard the petition in
July 2013, determined Mr. Tozzi was no longer in need of a
conservator, and ordered that Mr. Wilkinson transfer the
assets in the conservatorship to Mr. Tozzi and prepare the
final report and accounting of the conservatorship. He did
so, and on October 3, 2013, the district court entered an
order approving the final report and accounting and
terminated the conservatorship.
[¶7]
Nearly a year later, Mr. Tozzi submitted a motion under
Wyoming Rule of Civil Procedure 60(b), requesting the
district court vacate its final order in the conservatorship
except for the actual termination of the conservatorship. Mr.
Tozzi argued the Appellees engaged in continued misconduct
during the entirety of the conservatorship and alleged they
made various misrepresentations to the court. Mr. Tozzi also
claimed the Appellees took excessive fees from the
conservatorship, failed to follow statutory procedures for
submitting attorney's fees claims, and the final report
and accounting did not comply with the law. He explained he
did not bring the motion sooner because he could not retain
counsel until August 2014 and did not have access to Mr.
Wilkinson's conservator records until September 2014. The
district court denied the motion, finding that Mr. Tozzi had
not filed his motion in a reasonable amount of time after
entry of the order and he failed to provide newly discovered
evidence that would justify setting aside the order in the
conservatorship proceeding.
[¶8]
Mr. Tozzi did not appeal the district court's order
denying the Rule 60(b) motion. Instead, he filed a complaint
against Mr. Wilkinson and Mr. Moffett alleging conversion of
funds, professional malpractice, and breach of fiduciary
duty. He filed a separate complaint against Mr. Mulligan,
also alleging conversion of funds and professional
malpractice. The two cases were consolidated for discovery
and trial. The district court issued a scheduling order,
which included the requirements and deadlines for expert
witness designations. The parties filed their expert witness
designations on the date designated in the scheduling order.
[¶9]
Each of the Appellees filed a motion for summary judgment.
While each motion varied, all three were based on these
premises: 1) there were no genuine issues of material fact in
dispute and the Appellee was entitled to judgment as a matter
of law; and 2) the doctrines of res judicata and collateral
estoppel precluded Mr. Tozzi from relitigating these claims.
Mr. Tozzi responded to each motion, and also filed an
affidavit from one of his expert witnesses, Henry Bailey, an
attorney who has practiced law in Wyoming for almost forty
years. Mr. Moffett and Mr. Mulligan moved to strike Mr.
Bailey's affidavit under Wyoming Rule of Civil Procedure
37(c) on the ground that the affidavit contained opinions
about causation that were not disclosed in Mr. Bailey's
expert witness designation. They also pointed out that in his
deposition, Mr. Bailey testified he had no opinions regarding
causation and damages; therefore his affidavit opinions were
directly contrary to his previous testimony. The district
court determined that, because Mr. Bailey's causation
opinions were not disclosed in his expert witness
designation, they were untimely, and granted the motion to
strike Mr. Bailey's affidavit.
[¶10]
The district court granted summary judgment in favor of the
Appellees. The court agreed that the doctrines of res
judicata and collateral estoppel prevented Mr. Tozzi from
relitigating the reasonableness and lawfulness of the fees
that were approved by the court in the conservatorship
proceedings. The court also concluded that each of the
Appellees had demonstrated a prima facie case for summary
judgment and Mr. Tozzi had failed to come forward with
evidence demonstrating a genuine issue of material fact. Mr.
Tozzi timely appealed each of those orders.
STANDARD
OF REVIEW
[¶11]
When reviewing a district court's order granting summary
judgment, we review the decision de novo.
[W]e review a summary judgment in the same light as the
district court, using the same materials and following the
same standards. Snyder v. Lovercheck, 992 P.2d 1079,
1083 (Wyo. 1999); 40 North Corp. v. Morrell, 964
P.2d 423, 426 (Wyo. 1998). We examine the record from the
vantage point most favorable to the party opposing the
motion, and we give that party the benefit of all favorable
inferences that may fairly be drawn from the record.
Id. A material fact is one which, if proved, would
have the effect of establishing or refuting an essential
element of the cause of action or defense asserted by the
parties. Id. If the moving party presents supporting
summary judgment materials demonstrating no genuine issue of
material fact exists, the burden is shifted to the non-moving
party to present appropriate supporting materials posing a
genuine issue of material fact for trial. Roberts v.
Klinkosh, 986 P.2d 153, 155 (Wyo. 1999); Downen v.
Sinclair Oil Corp., 887 P.2d 515, 519 (Wyo. 1994).
Bear Peak Res., LLC v. Peak Powder River Res., LLC,
2017 WY 124, ¶ 10, 403 P.3d 1033, 1040 (Wyo. 2017)
(quoting Rogers v. Wright, 2016 WY 10, ΒΆ 7, 366
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